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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, May 4, 2012

Another Reversal for SVP Cases; Gaultney Dissents

The case is In re Commitment of Mohammad Reza Kalati. This is the fifth in the recent series of reversals of  the sexually violent predator trial court, although this time the trial judge being reversed is not Michael Seiler, but Putnam Kaye Reiter. The appellate court for SVP matters is the Ninth Supreme Judicial District Court of Beaumont.  As has been written in this blog before and in the Montgomery County Courier, Beaumont's Ninth Court has been holding that the SVP trial judges have been overly restrictive of the defense in this kind of cases.
There's another surprise here, though, beside the difference in trial judges. Justice David Gaultney, a scholarly and independent-minded jurist, usually a little more open to defense arguments than his fellows on the Beaumont Court, dissented.
In jury selection, the defense asked the venire panel, the group of people from which the jury would be selected, if they could be fair to a person an expert had diagnosed as a pedophile. The prosecution objected that the question was a commitment question, a question seeking to bind one or more jurors to a particular position before the juror had been given the evidence, and also that it made reference to a specific diagnosis. The trial judge sustained the objection. Justice Hollis Horton, writing for himself and Chief Justice Steve McKeithen, overruled the objection and granted Kalati a new trial. They felt bound by In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011).
Justice Gaultney dissented. He said that the question of the effect of a specific diagnosis might be objectionable, an inquiry into the weight that a panelist would give a specific piece of evidence, and the trial judge was never offered a clearly unobjectionable question.
Some observations: I don't hear any request for or implication of commitment in the defense's question. It's not weird for the petitioner to complain that the error as to specific diagnosis is not properly preserved, but I don't see that unclarity there undoes the improper sustaining of the commitment question.
I like how the Beaumont Court just attached the dissent to the end of the majority opinion, less work for the clerk and more convenient for the reader.
I made a mistake earlier today. I thought that this was a fifth reversal for Judge Seiler, but my friend and old colleague Brian Lacour, second chair for the defense at trial, corrected me.

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